Opinion

Friends of Mere Point v. Maine Board of Environmental Protection

Court
Superior Court of Maine
Filed
Mar 21, 2006
Status
Unpublished
On the bench
Robert E. Crowley
Cited by
0 cases
Authority
More cited than 34.1%

The opinion

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DOCKET NO. AP-05-067

FRIENDS OF MERE POINT

and ROBERT HEALING

Plaintiffs

ORDER ON PLAINTIFFS'

v. 80C APPEAL

MAINE BOARD OF

ENVIRONMENTAL

PROTECTION

BEFORE THE COURT

Before the court is Friends of Mere Point and Robert Healing's

("Petitioners") appeal, pursuant to M.R.Civ.P. 80C, of the State of Maine Board of

Environmental Protection's ("BEP") August 11, 2005 approval of the Maine

Department of Inland Fisheries and Wildlife's ("IF&WH)application to construct

a public boat launch on Mere Point Bay in the Town of Brunswick ("Town").

BACKGROUND

On May 23,2003, the IF&W applied for a permit to construct a public boat

launch consisting of a 110-foot long by 48-foot wide concrete boat ramp, 200 feet

of 8-foot wide floats anchored with pilings, a paved access drive, and a paved

parlung lot with 55 parlung spaces ("Boat Launch"). The Boat Launch is sited on

7.47 acres with approximately 400 feet of frontage on Mere Point Bay, near the

end of Mere Point Road. Petitioner Friends of Mere Point represents individual

citizens in the Brunswick area who own property abutting or in the vicinity of

the Boat Launch site. Petitioner Robert Healing resides in the vicinity of the Boat

Launch site.

1

In November, 2003, Petitioners were granted intervenor status in the

IF&W1sapplication. They sought at that time to introduce evidence to the BEP of

the Boat Launch's traffic impacts on Mere Point Road. Petitioners asserted that

the BEP was required under Maine's Natural Resources Protection Act, 38

M.R.S.A. §§ 480-A et seq., ("NRPA") to take these traffic impacts into

consideration. The BEP denied Petitioners' offer of evidence in a November 25,

2003 procedural order, stating, "only impacts to the existing uses of the protected

natural resources" are relevant to NRPA requirements. This procedural order

was affirmed by the BEP on December 18, 2003, and it also denied an April 12,

2005 request by Petitioners to reopen the record to include Petitioners' evidence.

On appeal, Petitioners request an order vacating the BEP's August 11, 2005

approval of the Boat Launch, and remanding the matter to the BEP with

instructions to consider Petitioners' evidence of negative traffic impacts.

DISCUSSION

Mere Point is a coastal peninsula on the Atlantic ocean. The site of the

Boat Launch consists in part of coastal and freshwater wetlands identified under

the NPRA as "protected natural resources." The NRPA requires IF&W, as the

applicant for a permit involving bulldozing, filling, and construction of a

permanent structure on and over a protected natural resource to demonstrate,

inter alia, that "the activity will not unreasonably interfere with existing scenic,

aesthetic, recreational or navigational uses." 38 M.R.S.A. §fj480-C and 480-D(1).

Petitioners do not appear to dispute the adequacy of BEP's finding that

"the proposed project will not unreasonably interfere with existing scenic and

aesthetic uses of the on-site protected natural resources or the adjacent coastal

waters.. .". Record Tab 467, pp. 11-12 (hereinafter "R.T. - at " ) . Rather,

2

they argue that the BEP erred as a matter of law by construing g480-D(1) as

applicable only to on-site protected natural resources, coastal waters around the

site, and a 75-foot wide area adjacent to these areas. Petitioners submit that §

480-D(1) requires the BEP to find that the proposed activity will also not

unreasonably interfere with existing scenic, aesthetic and recreational uses in

areas, such as Mere Point Road, w h c h surround the site but are not themselves

protected natural resources.

Because of the BEP's professional and technical expertise, the court grants

deference to its-interpretation of § 480-D(1). See Kroeger v. Maine Department of

Environmental Protection, 2005 ME 50, 9 16, 870 A.2d 566, 571, Isis Development,

LLC v. Town of Wells, 2003 ME 149, ¶ 3, fn. 4, 836 A.2d 1285, 1286, fn.4. In

addition, the court gives NRPA a broad, liberal interpretation. See Kroeger, 2005

ME 50 at 9 16. 5 480-D(1) states only that an applicant must show that: "The

activity will not unreasonably interfere with existing, scenic, aesthetic,

recreational or navigational uses," without specifying the geographic scope of

the requirement. Petitioners assert that, here, the BEP construed 5 480-D(1) too

narrowly when it considered only impacts on the sites of protected natural

resource themselves, the coastal waters, and the immediate surrounding area.

-.l'hey ciaim that this interpretation of 480-D(i) is not only contrary to the

general rule of expansive interpretation of the NRPA, but also contrary to the

Department of Environmental Protection's ("DEP") own prior interpretation of

t h s section. See Kroeger, 2005 ME 50 at 99 14-16.

In Kroeger, the petitioner was denied a permit to build a dock from his

property out into Somes Sound. 2005 ME 50 at 9 1. In denying the permit for the

Petitioner's failure to meet 5 480-D(1), the DEP noted that Somes Sound, which

3

borders Acadia National Park and is the location of the only natural fjord on the

east coast of the United States, is an area of unique scenic beauty, and that the

proposed dock would interfere with t h s overall scenic beauty on the Sound. Id.

at ¶ ¶ 10 and 14. The court accepted the DEP's application of § 480-D(1), stating,

A -

"the Department has interpreted the statute and its own regulations to mean that

the general location of the proposed activity is at issue when considering

interference with existing scenic uses." I d , at ¶ 16. As a matter of general

interpretation, then, § 480-D(1) applies to areas outside of the immediate vicinity

of the protected natural resources over which the structure is proposed to be

built. See id. at ql 15.

In t h s case, the BEP stated as a reason for rejecting consideration of traffic

impacts on Mere Point Road that "the purpose of the NRPA.. . is to protect the

State's critical natural resources and their 'scenic beauty and . . . recreational,

cultural, historical and environmental values.' 38 M.R.S.A. C

j480-A." R.T. 467 at

11. The BEP appears to have based its current limited focus upon the area for

which use impacts would be considered on this general understanding. For its

part, the Town adds that "§ 480-D(l)'s silence as to the exact geographic scope of

the inquiry does not obligate the DEP to conduct a limitless inquiry."

Intervenor's Opposing Brief, p. 5.

In spite of the broad geographic scope of the BEP's § 480-D(1) review in

Kroeger, the scope of its review in this case is not inconsistent with that

undertaken in Kroeger. See 2005 ME 50 at ¶ 14. The BEP has interpreted fj480-

D(1) in relation to the overall purpose of the NRPA, i.e. protection of the scenic

beauty and recreational, cultural, historical and environmental value of critical

natural resources withn the state. See 38 M.R.S.A. 5 480-A. The Petitioners have

4

asserted that the anticipated traffic from the proposed launch will disturb

recreational uses along h4ere Point Road, but they did not meet the implicit

prerequisite for the BEP's consideration of such evidence, that the area they claim

will be impacted is a critical natural resource that the NRPA is designed to

protect. See Kuoeger, 2005 ME 50 at a[ 14. Somes Sound, and Acadia National

Park, the areas from which the BEP in Kroeger considered the scenic impacts of

Kroegerfs proposed dock, are critical natural resources. See id. Accordingly, the

BEPfs refusal to consider Petitioner's evidence was not in error.

The entry is:

Petitioners' 80C appeal is DENIED. The Board of Environmental

Protection's August 11, 2005 order is affirmed.

Dated at Portland, Maine this 2 ' jr'

day of .&. ,2006.

Justice, Superior court

Date Filed

Action

SEPT. W- 2 0 0 5

8 0 C APPEAL

CmBERLAND

County

Docket No.

pe AP-05-67

I

I

1

FRIENDS OF MERE POINT MAINE BOARD OF ENVIRONMENTAL PROTECT1 I

ROBERT HEALING

TOWN OF BRUNSWICK ( I n t e r v e n o r ) I

I

vs. I

I

Plaintiff's Attorney Defendant's Attorney

MATTHEW D MANAHAN ESQ CAROL B L A S I AAG

CATHERINE R CONNORS ESQ

6 STATE HOUSE STATION

ONE MONZMENT SQUARE

AUGUSTA ME: 0 4 3 3 3

PORTLmD YAINE 34131

( 2 0 7 ) 7 9 1 - 1 100

(BRUNSWICK)

JEFFREY THALER, ESQ.

PO BOX 9 7 2 9

PORTLAND, ME 0 4 1 0 4 - 0 5 2 9

Date of

Entry

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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